A perennial objection to the constitutional theory known as "originalism" is its alleged inconsistency with the result in Loving v. Virginia. Judicial and scholarly critics have often cited this inconsistency as a leading argument against what one court called the "rigid, originalist view of constitutional interpretation." According to several courts (prompted by the Supreme Court's opinion in United States v. Windsor), just as Loving properly disregarded the original understanding of the Fourteenth Amendment by invalidating laws prohibiting marriage between persons of different races, courts today should likewise set aside historical understandings to invalidate laws inhibiting marriage between persons of the same sex.
This article addresses a question that is central to the current marriage litigation: To what extent was Loving v. Virginia a rejection or fulfillment of the original understanding of the Fourteenth Amendment? In answering this question, this article addresses a substantial body of evidence that has been largely overlooked by scholars.
This article proceeds in four parts, corresponding to the following conclusions: (1) that before the Fourteenth Amendment, most (but not all) authorities concluded that racial-endogamy laws abridged a pre-existing right recognized at common law, which represented a privilege of citizenship; (2) that during the adoption of the Fourteenth Amendment, both proponents and opponents generally (though not unanimously) declared, acknowledged, or conspicuously failed to deny, that the Fourteenth Amendment would invalidate such laws; (3) that contra the Supreme Court's claim in Casey (and the argument of Virginia's attorneys in Loving), within five years of the Fourteenth Amendment's ratification, racial-endogamy laws were either non-existent or unenforced in a clear majority of the states, in large part because Republican officials-including African-Americans' constitutional entitlement to the status and privileges of citizenship precluded the making or enforcing of such laws; and (4) that the contrary holdings were made by Democratic judges hostile to Reconstruction, whose hostility was frequently manifest in their implausible interpretations of the Fourteenth Amendment. This article will conclude with reflections on how the Supreme Court's decision in the Slaughter-House Cases dealt a serious blow to the Fourteenth Amendment's original meaning and thus, facilitated the renewed making and enforcing of these laws.
This history will prove, by a strong preponderance of the evidence, that the Fourteenth Amendment, as understood by the citizens that proposed, ratified, and initially interpreted it, precluded the making or enforcing of state racial-endogamy laws, insofar as such laws prohibited or invalidated marriages between citizens of the United States.
David R. Upham,
Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause,
42 Hastings Const. L.Q. 213
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol42/iss2/1